Citation NR: 9742556
Decision Date: 12/29/97 Archive Date: 01/02/98
DOCKET NO. 95-19 736 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to an increased rating for the residuals of
left radial head fracture, currently rated 20 percent
disabling.
2. Entitlement to an increased (compensable) rating for
sinusitis.
3. Timeliness of the appeal of the denial of service
connection for a right heel disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. L. Douglas, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1990 to June
1994.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from an October 1994 rating decision by the
Fort Snelling, Minnesota, Regional Office (RO) of the
Department of Veterans Affairs (VA). Subsequently, the
veteran relocated, and the case was transferred to the RO in
Portland, Oregon.
The record reflects that an October 1994 rating decision
granted service connection for the residuals of left radial
head fracture, assigned a 20 percent disability rating, and
sinusitis, assigned a 0 percent disability rating. The
decision also denied service connection for low back
disorder, left wrist disorder, sternum disorder, right heel
disorder, left fifth toe disorder and residuals of frostbite
of the right great toe.
In November 1994, the RO received a notice of disagreement as
to the issues of compensation level for the residuals of left
radial head fracture and sinusitis, and to the denial of
service connection for a low back disorder. The RO issued a
statement of the case in December 1994.
In February 1995, the veteran perfected her appeal as to the
issues of entitlement to an increased rating for the
residuals of left radial head fracture and sinusitis, and
entitlement to service connection for a low back disorder.
The correspondence also provided notice of disagreement as to
the issues of entitlement to service connection for left
wrist disorder, sternum disorder, right heel disorder and
left fifth toe disorder.
In March 1995, the RO issued a statement of the case as to
the issues of service connection for sternum disorder, right
heel disorder, left fifth toe disorder and hay fever, and
entitlement to an increased rating for the residuals of left
radial head fracture.
In June 1995, the veteran perfected the appeal as to the
issues of entitlement to service connection for left fifth
toe disorder and hay fever.
A September 1995 rating decision granted service connection
for low back strain, assigned a 10 percent disability rating,
left wrist tendonitis, assigned a 0 percent disability
rating, and the residuals of frostbite of the right great
toe. The decision also denied increased ratings for
sinusitis and the residuals of left radial head fracture, and
denied service connection for sternum disorder, right heel
disorder, hay fever and tonsillitis and left shoulder
bursitis.
In September 1995, the RO issued a supplemental statement for
the case as to the issues of entitlement to increased ratings
for sinusitis and the residuals of left radial head fracture,
and service connection for a sternum disorder, right heel
disorder, left fifth toe disorder and hay fever.
A July 1996 rating decision denied increased ratings for the
residuals of left radial head fracture, sinusitis and chronic
lumbosacral strain. The July 1996 supplemental statement of
the case addressed the issues of entitlement to increased
ratings for the residuals of left radial head fracture and
sinusitis.
In September 1996, the veteran submitted a notice of
disagreement as to the issues of service connection for left
shoulder bursitis and compensation level for left wrist
tendonitis. The correspondence was also submitted as a
substantive appeal as to the issue of entitlement to service
connection for a right heel disorder.
In June 1997, the veteran testified at a personal hearing
before the undersigned Board Member. A copy of the
transcript of that hearing is of record. At the June 1997
personal hearing, the veteran withdrew her appeal as to the
issues of service connection for sternum disorder, left fifth
toe disorder and hay fever.
During personal hearing testimony the veteran presented
evidence in disagreement with the issue of compensation level
awarded for chronic lumbosacral strain. Correspondence
received in September 1996 may be considered timely notice of
disagreement as to the issues of compensation level for left
wrist tendonitis, and service connection for left shoulder
bursitis. In addition, in the September 1996 correspondence
the veteran raised an additional issue of entitlement to
service connection for ear infections secondary to her
service-connected sinusitis. These matters are referred to
the RO for appropriate development.
REMAND
Initially, the Board notes that the veteran’s increased
rating claims are found to be well-grounded under 38 U.S.C.A.
§ 5107(a). That is, she has presented claims which are
plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In
general, an allegation of increased disability is sufficient
to establish a well-grounded claim seeking an increased
rating. Proscelle v. Derwinski, 2 Vet.App. 629 (1992).
The veteran contends that that her residuals of left radial
head fracture and sinusitis are more severely impaired than
indicated by the present disability evaluations. She argues
that increased ratings are warranted.
The Board notes that during this appeal the Schedule for
Rating Disabilities was revised with respect to the
regulations applicable to rating respiratory disabilities,
including sinusitis. These amendments were effective on
October 7, 1996. The United States Court of Veterans Appeals
(Court) has held that where a law or regulation changes after
a claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant will apply.
Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991).
The certification of appeal includes the issue of service
connection for a right heel disorder. It is not clear that a
timely substantive appeal was received regarding this matter.
Therefore, the issue listed on the title page of this
decision with regard to this matter is whether the appeal was
timely.
The Board also notes that the July 1995 VA medical
examination found a history of left radial head fracture,
status post radial head excision, with slight loss in range
of motion. The veteran claims that she experiences constant
pain and duress as a result of her left arm disability. The
report of examination does not include an x-ray examination
of the left elbow, a discussion of any objective evidence of
left arm pain or a documentation of all of the functional
limitations imposed by the veteran's musculoskeletal
disorders. See DeLuca v. Brown, 8 Vet.App. 202 (1995).
The fulfillment of the statutory duty to assist includes
providing additional VA examinations by a specialist when
recommended, and conducting a thorough and contemporaneous
medical examination, which takes into account the records of
prior medical treatment, so that the disability evaluation
will be a fully informed one. See Hyder v. Derwinski,
1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121,
124 (1991).
To ensure that VA has met its duty to assist the veteran in
developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
remanded for the following:
1. The RO should obtain the treatment
records from the veteran’s private and VA
medical care providers since her
discharge from active service. Any
pertinent records obtained should be
associated with the claims folder. The
veteran should be asked to sign any
necessary consent forms for release of
her private medical records.
2. The veteran should be afforded a VA
orthopedic examination to determine the
nature and severity of the residuals of
left radial fracture. The claims folder
and a copy of this remand should be made
available to and reviewed by the examiner
prior to conduction and completion of the
examination. The examination should
include a complete x-ray study of the
left elbow, and any other tests or
studies deemed necessary for an accurate
assessment. The examiner should comment
on the presence of any evidence of
nonunion, malunion or degenerative change
in the left elbow shown by x-ray
examination. The examiner should conduct
both active and passive range of motion
testing.
The examiner also should specify any
anatomical damage and describe any
functional loss, including the inability
to perform normal working movements. The
examiner should specify any functional
loss due to pain or weakness, and
document all objective evidence of those
symptoms. See 38 C.F.R. §§ 4.40, 4.45,
4.59 (1996). The examiner should also
document, to the extent possible, the
frequency and duration of exacerbations
of symptoms. The examiner should provide
the rationale for the opinions given.
3. Thereafter, the RO should review the
claims file to ensure that the above
requested development has been completed
in full. In particular, the RO should
ensure that the requested examination and
required opinions are responsive to and
in compliance with the directives of this
remand and if they are not, the RO should
implement corrective procedures.
4. After undertaking any development
deemed appropriate in addition to that
requested above, the RO should adjudicate
any issues for which a notice of
disagreement has been filed. The RO
should consider all applicable laws and
regulations and determine whether the
denial of service connection for a right
heel disorder was timely appealed.
As to the issue of entitlement to an
increased rating for sinusitis, the RO
should adjudicate the matter in light of
the rating criteria, effective before and
after October 7, 1996, assigning the
rating under the criteria most favorable
to the veteran. See 38 C.F.R. § 4.97,
Diagnostic Code 6513.
If any benefit sought, for which a timely notice of
disagreement was filed, is not granted to the veteran’s
satisfaction, the RO should issue a supplemental statement of
the case. The requisite period of time for a response should
be afforded. Thereafter, the case should be returned to the
Board for final appellate review, if otherwise in order. By
this remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until she is notified by the RO; however, the veteran is
advised that failure to cooperate by reporting for
examinations may result in the denial of her claim.
38 C.F.R. § 3.655 (1996).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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